This
case involves a dispute over real estate in Newton,
Massachusetts. Plaintiff Reem Property, LLC,
(“Reem”) which entered into an agreement to
purchase the property, brings this diversity action against
the seller Robert Engleby alleging breach of contract (Count
I), breach of implied covenant of good faith and fair dealing
(Count II), unjust enrichment (Count III), conversion (Count
IV), and violation of Massachusetts General Laws ch. 93A
(Count V).

In
April 2016, Engleby brought a special motion to dismiss the
complaint under Massachusetts General Laws ch. 184, §
15(c) and Federal Rule of Civil Procedure 12(b)(6), and a
motion to dissolve the memorandum of lis pendens.

On July
20, 2016, Magistrate Judge Bowler issued a report and
recommendation to dismiss Count I, breach of contract, under
Massachusetts General Laws ch. 184, § 15(c), but
recommended the denial of the motion to dismiss the remaining
counts and to dissolve the lis pendens. Docket No. 32. After
hearing, this Court adopted Judge Bowler's Report and
Recommendation on September 21, 2016, and assumes familiarity
with it.

After
an opportunity for discovery, Engleby moved for summary
judgment on Counts II through V and his counterclaim for
breach of contract. Docket No. 62. Reem moved for summary
judgment as to Engleby's counterclaim. Docket No. 65.
After hearing, the Court requested additional briefing on the
counterclaim -- the request for an award of attorney's
fees and costs of $41, 628.00 pursuant to Massachusetts
General Laws ch. 184, § 15(c). The Court dissolved the
memorandum of lis pendens on March 1, 2017. Docket No. 79.

For the
purposes of the motion for summary judgment, the facts are
taken in the light most favorable to the non-moving party and
are undisputed except where stated.

The
highest bidder for the property at the foreclosure sale
submitted a bid of $430, 000, but defaulted on the terms of
the Memorandum of Sale. Reem was the next highest bidder with
a bid of $275, 000. Engleby was the third highest bidder at
$250, 000. On June 10, 2015, Reem and Engleby entered into a
Memorandum of Sale of Real Estate. The agreement stated that
Reem would buy the Property from Engleby for $275, 000 with
an initial deposit of $10, 000 and that “TIME IS OF THE
ESSENCE IN THIS AGREEMENT AS TO BUYERS OBLIGATIONS
HEREUNDER.” Docket No. 1, ex. 1 at 14. Reem paid the
$10, 000 deposit. The balance was due on July 10, 2015 on or
before 1:00 p.m.

On July
9, 2015, Reem paid an additional $10, 000 to obtain a 30-day
extension of the time for payment. Engleby also informed Reem
that he was only willing to extend for an additional 30 days
if Reem expressly agreed that if it did not tender the
balance of the purchase price on or before the closing date,
for any reason, Engleby is entitled to “retain the $20k
paid as a deposit, without argument, challenge or any demand
that it be refunded.” Docket No. 24, ex. 3 at 2. Reem
agreed to these terms and the extension agreement was signed
the next day. The “time is of the essence” clause
was carried over in the extension.

Although
Reem attempted to wire the amount prior to the due date, he
was unsuccessful. Reem did not make a payment until August
13, 2015, three days after the extension expired. The failure
to meet the deadline was caused by a review by U.S.
authorities under the money laundering and bank regulations
because the money was wired internationally from Lebanon,
where the sole manager of Reem was located at that time.

After
receiving Reem's payment, Engleby immediately informed
Reem of its default and advised Reem its funds would be
returned. The funds were returned on August 20, 2015.
However, Engleby kept the $20, 000.

As the
third highest bidder at $250, 000, Engleby sold the property
to Dornoch Equity Services, LLC on August 20, 2015 for $250,
000, the same amount as his bid. ...

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